Tony G. and Roberta A. Montgomery - Page 4

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          several years, progressed in intensity.  He had several back                
          surgeries and, finally, was unable to work.  He was retired for             
          disability in May 1999.                                                     
               During his career with Kroger, petitioner availed himself of           
          purchasing disability insurance that would pay benefits to                  
          employees injured or otherwise disabled in connection with their            
          employment.  Petitioner’s condition warranted benefits under this           
          insurance.  Upon his retirement, petitioner began receiving these           
          benefits.  The parties agree that these benefits were not                   
          includable in petitioner’s gross income.  Petitioner also                   
          received workman’s compensation benefits, which are not at issue            
          in this case.  Under the terms of the insurance policy at issue             
          here, the benefits terminated whenever the employee became                  
          entitled to Social Security benefits.                                       
               Under the terms of the employer-sponsored insurance,                   
          petitioner received benefits from the date of his retirement from           
          1999 up to the year 2001.  The terms of that policy, however,               
          required the employee-beneficiary to apply for disability Social            
          Security benefits, and, if the employee were found eligible for             
          disability Social Security, the benefits of the employer-                   
          sponsored insurance would cease.                                            
               As required, petitioner applied for disability Social                  
          Security benefits, and he was determined to be totally and                  
          permanently disabled.  The issue in this case involves the                  





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